Bard Peripheral Vascular, Inc. v. WL Gore

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BARD PERIPHERAL v. WL GORE 26failure of others. Graham v. John Deere Co. of KansasCity, 383 U.S. 1, 17 (1966). 11The asserted claims require specific “average distance[s]between nodes.” ’135 patent, col.12 ll.4–5, 24, 33,38. In light of Volder alone, the district court found thatthe following evidence at trial supported the legal conclusionthat claims 20 to 24 and 27 are not obvious:(1) Volder was “repeatedly considered bythe PTO before, during, and afterGore’s interference” proceeding, inwhich Gore itself consistently distinguishedVolder from Goldfarb’s invention;(2) Dr. Volder, the author himself, statedunder oath in an unrebutted affidavitthat he thought “that the prostheticvascular structure conceived and developedby [Goldfarb] . . . was by nomeans obvious to those actively conductingresearch on expanded PTFE11 Bard argues that Gore waived all theories of obviousnessexcept that claim 20 was invalid in light of Volderalone because that was the only Rule 50(a) motion Goremade before the jury verdict. However, the district courtspecifically held that “any renewed JMOL motion Gorechooses to file as to obviousness shall not be limited toClaim 20 and the Volder article.” Obviousness I, 2008 WL2954187, at *4. This court is “not disposed to override adistrict court’s determination of non-waiver.” TradingTechs. Int’l, Inc. v. eSpeed, Inc., 595 F.3d 1340, 1360 (Fed.Cir. 2010) (internal quotation marks omitted). Thus, wewill not disturb the district court’s determination thatGore’s renewed motions for judgment as a matter of lawon obviousness beyond claim 20 in light of Volder alonewere not waived.
27BARD PERIPHERAL v. WL GOREvascular structures during 1972 and1973”;(3) researchers were unable to invent asuccessful graft even after Volder andMatsumoto were published, and Coopertestified in 1975 that he was“compelled to steal Dr. Goldfarb’s histologyslides” to determine why otherswere not successful;(4) Goldfarb testified that neither Voldernor Matsumoto taught his invention,and Anderson testified that he wouldnot have been able to create a workinggraft based on Volder and Matsumoto;and(5) “pore size” and “internodal distance”are not synonymous based on severalpieces of record evidence, includingWilbert L. Gore’s, Gore’s founder, declarationthat “‘[p]ore size’ is not synonymouswith ‘fibril length’” in Volderand Cooper and Goldfarb’s agreement“that pore size bears no relationshipto fibril length” in the Interference.Obviousness II, 2009 WL 886515, at *4–5 (some internalquotation marks and citations omitted); see also ObviousnessI, 2008 WL 2954187, at *5.In light of Volder and Matsumoto in combination, thecourt also found, in addition to its above findings onVolder alone, that the following evidence at trial supportedthe legal conclusion that claims 20 to 27 are notobvious:(1) like Volder, Matsumoto was “repeatedlyconsidered by the PTO during the
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